The debate most recently arose at the Supreme Court after the conservative advocacy group Citizens United, a corporation, was prevented from airing a 90-minute documentary critical of then-candidate Hillary Rodham Clinton. The group wanted to air the film on pay-per-view cable television. The Federal Election Commission determined that the documentary, "Hillary: The Movie," was a form of electioneering that could be regulated under federal election laws. The FEC also ruled that advertisements about the film could be regulated, too. A panel of three federal judges upheld the FEC ruling. Citizens United then appealed to the Supreme Court.
High court decisions in 1990 and 2003 had strengthened the hand of those arguing for restrictions on corporations and for creation of a level campaign playing field. But other decisions since the 1970s advanced the idea that spending money in elections – even corporate money – can involve an expression of free speech.
What happened on Jan. 21 with the decision in Citizens United v. FEC is that five of the nine justices decided to erase the two key precedents that had laid the groundwork for reform focused on creating a level playing field. Those arguments have now been declared unconstitutional.
That's why campaign advocates of finance reform view the decision as akin to being pushed off a cliff. The decision marks the end of what had been a spirited debate over how to achieve the highest promise of American democracy.
Instead of a tightly regulated level playing field, the conservative wing of the Supreme Court has pointed America toward a messy "marketplace of ideas." In Justice Anthony Kennedy's view, if corporate speech presents a threat of undue influence in American politics, the proper response in the spirit of the First Amendment is to meet it with even more speech.